Unit on Second Amendment?
Nelson Lund
nlund at gmu.edu
Wed Apr 2 12:59:11 PDT 2008
The preamble may or may not be "inaccurate." The operative clause does
not subtract from the ability of the government to regulate the militia
unless you make the mistaken assumption that Article I conferred on
Congress the right to infringe the right of the people to keep and bear
arms. Nobody made that assumption at the time of the framing, which is
why nobody objected to an express constitutional guarantee of that right.
Nelson Lund
George Mason
Rosenthal, Lawrence wrote:
> It seems to me that that a reading of the operative clause that renders
> the preamble inaccurate is untenable. The operative clause surely must
> be read to preserve the ability of the government to "well regulate" the
> militia, e.g., all persons thought capable of keeping and bearing arms.
>
> -----Original Message-----
> From: nlund at gmu.edu [mailto:nlund at gmu.edu]
> Sent: Wednesday, April 02, 2008 11:06 AM
> To: Rosenthal, Lawrence
> Cc: Volokh, Eugene; Conlawprof at lists.ucla.edu
> Subject: Re: Unit on Second Amendment?
>
> With respect to certain important points, I don't agree with all other
> "advocates of the individual rights view," and maybe that's the source
> of the confusion here.
>
> "Militia" is not a defined term in the Constitution, and there were
> important disagreements among the founding generation about the
> appropriate way of organizing a militia. But those disagreements are not
>
> relevant, in my view, because the Second Amendment does not confer any
> regulatory power at all on Congress. Whatever regulatory power is
> "acknowledged" (or I would say "alluded to") in the preamble is not
> conferred by the preamble, and is not a limitation on the right of the
> people guaranteed in the operative clause.
>
> Nelson Lund
> George Mason
>
> Rosenthal, Lawrence wrote:
>
>> Now we are talking past each other. Professors Lund and Volokh's
>>
> posts
>
>> make clear that the 18th century definition of "militia" included
>> state-organized military organizations, but does not establish that
>>
> the
>
>> definition was limited to such organizations. Over the past 25 years,
>> advocates of the individual rights view of the Second Amendment, in
>> order to reconcile the individual rights view with the preamble, have
>> argued quite persuasively that the term militia was not limited to
>> governmentally organized militias, but included the whole of the
>> population thought able to keep and bear arms. Although my posts seem
>> to provoke a lot of contention, no one has expressly rejected this
>>
> view,
>
>> and Professor Somin has conceded its correctness. Advocates of the
>> individual rights view, however, cannot have it both ways. If the
>> militia includes everyone thought capable of keeping and bearing arms,
>> then that entire universe is subject to the ample regulatory power
>> acknowledged in the preamble. And, as Saul Cornell among other has
>> demonstrated, even the 18th century conception of regulatory power
>>
> (and
>
>> it is unclear to me that the text chains us to 18th century
>>
> conceptions
>
>> on this point -- compare the Second Amendment's preamble to the
>>
> Seventh
>
>> Amendment's explicit reference to the then-extant common law) was
>> expansive.
>>
>> Larry Rosenthal
>> Chapman University School of Law
>>
>> -----Original Message-----
>> From: nlund at gmu.edu [mailto:nlund at gmu.edu]
>> Sent: Wednesday, April 02, 2008 9:30 AM
>> To: Rosenthal, Lawrence
>> Cc: Volokh, Eugene; Conlawprof at lists.ucla.edu
>> Subject: Re: Unit on Second Amendment?
>>
>> The Second Amendment added absolutely nothing to the near-plenary
>> authority of Congress, conferred in Art. I, to regulate the militia.
>>
> It
>
>> is not true that "the preamble makes plain that those eligible to keep
>>
>
>
>> and bear arms (the 'militia' in 18th century terms) are to be 'well
>> regulated.'" For one thing, among others, the Second Amendment does
>>
> not
>
>> identify "those eligible to keep and bear arms" as "the militia." On
>>
> the
>
>> contrary, the Second Amendment says that the right to keep and bear
>>
> arms
>
>> belongs to "the people," and the militia at that time (as now) was a
>> small subset of the citizenry.
>>
>> Nelson Lund
>> George Mason
>>
>>
>> Rosenthal, Lawrence wrote:
>>
>>
>>> I fear that Professor Volokh's post overlooks an important textual
>>>
>>>
>> difference between the Second Amendment and the other constitutional
>> provisions that recognize individual rights. While I am happy to
>>
> agree
>
>> with Professors Volokh, Levinson, and many others that the Second
>> Amendment's preamble does not mean that the amendment protects only a
>> collective right, at a minimum, the preamble makes plain that those
>> eligible to keep and bear arms (the "militia" in 18th century terms)
>>
> are
>
>> to be "well regulated."
>>
>>
>>> No other rights-protecting constitutional provision contains a
>>>
>>>
>> similarly broad textual commitment to regulatory power.
>>
>>
>>>
>>> Larry Rosenthal
>>> Chapman University School of Law
>>>
>>> ________________________________
>>>
>>> From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
>>> Sent: Wed 4/2/2008 7:54 AM
>>> To: Conlawprof at lists.ucla.edu
>>> Subject: RE: Unit on Second Amendment?
>>>
>>>
>>> I agree entirely that legislatures must have some degree of
>>>
>>>
>> flexibility in regulating the exercise of various rights. But I
>>
> should
>
>> note that "an amendment that arguably facilitates homicides more than
>>
> it
>
>> does freedom" is a phrase that can be used about many amendments, not
>> just the Second. Consider, for instance, the privilege against
>> self-incrimination, which "arguably" does little to promote freedom
>>
> and
>
>> yet helps criminals avoid conviction in quite a few cases, and thus
>>
> lets
>
>> them commit future crimes, including homicides; consider likewise the
>> Fourth Amendment, various aspects of the Sixth, and in some instances
>> the Free Speech Clause, which protects the spreaad of ideas that help
>> lead to homicides (a factor that I find much outweighed by the value
>>
> of
>
>> protecting even such pro-violence speech, but that may "arguably" be
>> said to be otherwise).
>>
>>
>>>
>>> Eugene
>>>
>>>
>>> ________________________________
>>>
>>> From: conlawprof-bounces at lists.ucla.edu
>>>
>>>
>> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Miguel Schor
>>
>>
>>> Sent: Wednesday, April 02, 2008 5:51 AM
>>> To: Alan Tauber; Conlawprof at lists.ucla.edu; s-gerber at onu.edu
>>> Subject: RE: Unit on Second Amendment?
>>>
>>>
>>> One constitutional principle that should be taught in any second
>>>
>>>
>> amendment unit-but will not be I suspect-is embedded in Section 1 of
>> the Canadian Charter of Rights and Freedoms. It provides very
>>
> sensibly
>
>> as follows: "The Canadian Charter of Rights and Freedoms guarantees
>>
> the
>
>> rights and freedoms set out in it subject only to such reasonable
>>
> limits
>
>> prescribed by law as can be demonstrably justified in a free and
>> democratic society." Limitations clauses are important because they
>> inform courts that legislatures have a role to play in construing
>> rights. For an amendment that arguably facilitates homicides more
>>
> than
>
>> it does freedom, the role of legislatures in construing rights is an
>> important principle to keep in mind.
>>
>>
>>>
>>> Miguel Schor
>>> Associate Professor of Law
>>> Suffolk University Law School
>>> 120 Tremont St.
>>> Boston, MA 02108
>>> 617-305-6244
>>> SSRN Webpage http://ssrn.com/author=469730
>>>
>>>
>>>
>>>
>>> ---- Original message ----
>>>
>>>
>>>
>>> Date: Wed, 02 Apr 2008 08:09:27 -0400
>>> From: "Alan Tauber" <taubera at gwm.sc.edu>
>>> Subject: RE: Unit on Second Amendment?
>>> To: <Conlawprof at lists.ucla.edu>,<s-gerber at onu.edu>
>>> >When I was in law school, we did a unit on the Second
>>>
>>>
>> Amendment. We read U.S. v. Miller, the Supreme Court's last case on
>>
> the
>
>> Second Amendment, back in 1923. We also read Emerson, the 5th Circuit
>> case that first recognized the Amendment protected a personal right.
>>
>>
>>> >
>>> >Obviously, I'd add the case pending before the Supreme
>>>
>>>
>> Court - the lower court opinion, since I'm assuming the Court is going
>> to wait to drop the opinion until the last day of the term.
>>
>>
>>> >
>>> >Hope that helps,
>>> >Alan
>>> >
>>> >Alan Tauber, J.D.
>>> >Ph.D. Candidate, Political Science
>>> >University of South Carolina
>>>
>>> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=467126
>>> >>>> "Gerber, Scott" <s-gerber at onu.edu> 04/02/08 6:39 AM
>>>
>>> >Please share any answers to David's question with the
>>>
>>>
>> list.
>>
>>
>>> >Thanks,
>>> >Scott
>>> >
>>> >*****************************
>>> >Scott Douglas Gerber
>>> >Professor of Law
>>> >Ohio Northern University
>>> >Ada, OH 45810
>>> >419-772-2219
>>>
>>>
>>>
> http://www.law.onu.edu/faculty_staff/faculty_profiles/scottgerber.html
>
>>> >http://upress.kent.edu/books/Gerber_S.htm
>>> >
>>> >________________________________
>>> >
>>> >From: conlawprof-bounces at lists.ucla.edu on behalf of
>>>
>>>
>> DavidEBernstein at aol.com
>>
>>
>>> >Sent: Tue 4/1/2008 10:45 PM
>>> >To: Conlawprof at lists.ucla.edu
>>> >Subject: Unit on Second Amendment?
>>> >
>>> >
>>> >Hi, all.
>>> >
>>> >I have one two-hour class to fill at the end of the
>>>
>>>
>> semester, and I've been considering my options. One option is a unit
>>
> on
>
>> the 2nd Amendment. The casebook I'm using doesn't cover it at all. Has
>> anyone spent either one or two hours on it, and if so, could you share
>> what you had the students read (private responses welcome).
>>
>>
>>> >
>>> >David E. Bernstein
>>> >Professor
>>> >George Mason University School of Law
>>> >http://mason.gmu.edu/~dbernste
>>> >
>>> >
>>> >
>>> >________________________________
>>> >
>>> >Create a Home Theater Like the Pros. Watch the video on
>>>
>>>
>> AOL Home
>>
>>
> <http://home.aol.com/diy/home-improvement-eric-stromer?video=15&ncid=aol
>
>> hom00030000000001> .
>>
>>
>>> >_______________________________________________
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>>>
>>>
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>>
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>
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>>
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>>> >
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>>>
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>>
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>>>
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>> or wrongly) forward the messages to others.
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